Chamani v Freezer Back Trailer and Van Hire Pty Ltd (No 2)

IN THE MAGISTRATES’ COURT OF VICTORIA

AT LOCATION
WORKCOVER DIVISION

Case No. K12564584

MOHAMMAD CHAMANI	Plaintiff
v
FREEZER BACK TRAILER & VAN HIRE PTY LTD	Defendant

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MAGISTRATE:	Magistrate M J Richards
WHERE HELD:	Melbourne (OMC)
DATE OF HEARING:	13. 14, 18 & 20 October 2021
DATE OF DECISION:	12 November 2021
CASE MAY BE CITED AS:	Chamani v Freezer Back Trailer & Van Hire Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VMC 016

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Workers Compensation - Accepted claim for injury to the back - Return to work on modified duties – Subsequent resignation of employment – Whether resignation for reasons unrelated to incapacity - Workplace Injury Rehabilitation and Compensation Act 2013 - Section 185.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr L Allan	Zaparas Lawyers Pty Ltd
For the Defendant	Mr B McKenzie	IDP Lawyers

HIS HONOUR:

INTRODUCTION

The plaintiff was born on 1 January 1964 in Afghanistan. He came to Australia in 2007 and spent two years in a refugee camp. The plaintiff’s speaks Dari. He is unable to read or write in the Dari language. The plaintiff also has poor English skills and is unable to read or write in the English language. The plaintiff required an interpreter to give evidence.
The plaintiff commenced employment with Transport Innovators Australia Pty Ltd as a fibreglass laminator in 2010. The directors of that company were David Hofen and Jeff Bird. In or about mid- 2015, the plaintiff commenced working for Freezer Back Trailer & Van Hire Pty Ltd (the defendant) as a fibreglass laminator. The directors of that company were also David Hofen and Jeff Bird. There was no change in the plaintiff’s work duties.
The plaintiff sustained an injury to his back in a lifting incident at work on 15 May 2017. He had two days off work and returned to work on modified duties working full-time.
The plaintiff subsequently completed a claim for compensation with respect to the back injury on 20 December 2017 (Exhibit 1 - PCB 13). The claim for compensation was accepted.
The plaintiff remained at work performing modified duties until 23 March 2018. On that day he resigned his employment with the defendant. He has not returned to any form of employment.
On 30 November 2018, the plaintiff’s solicitors requested reinstatement of the plaintiff’s weekly payments from 23 March 2018. The defendant’s then Workcover Agent (CGU) investigated the request and sought clinical records and arranged an independent medical examination.
In February 2019, the dispute was referred to the Accident Compensation Conciliation Service (the ACCS).
On 11 April 2019, agreement was reached between the parties and the plaintiff’s weekly payments were reinstated from 23 March 2018. The ACCS issued an outcome certificate to that effect.
By Notice dated 24 May 2019, CGU advised the plaintiff of, inter alia, the following:

Review of your weekly payments

CGU Workers Compensation (Vic) Limited (CGU) has determined that the level of your current weekly earnings are reduced because on 23 March 2018 you resigned your employment for reasons unrelated to your incapacity.

CGU’s decision

CGU has determined that from 23 March 2018 you are not entitled to weekly payments because you have voluntarily removed yourself from employment. CGU will make weekly compensation payments for the period 14 February 2019 to 24 April 2019.

(Exhibit 2 - PCB 24)

In the said notice, CGU determined the plaintiff was entitled to weekly payments for a limited period during which he had been certified as having no capacity for employment. CGU otherwise determined the plaintiff was ‘entitled to reduced weekly payments in the amount of $0.’
The plaintiff subsequently issued these proceedings. On 15 June 2021, I heard preliminary argument as to whether the defendant was in breach of the agreement reached on 11 April 2019. and whether the notice dated 24 May 2019 was invalid. Prior to the preliminary argument, the defendant agreed to pay the plaintiff weekly payments from 24 March 2018 to 24 May 2019. I ruled, inter alia, that the proceeding should be determined on the merits (see Chamani v Freezer Back Trailer & Van Hire Pty Ltd, unreported, delivered 22 June 2021). The proceeding was fixed for hearing.
The plaintiff is now seeking weekly payments from 25 May 2019 to date and ongoing.
Section 185(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRC Act) reads as follows:

185 Where worker’s weekly payments are reduced

If the current weekly earnings of a worker who –
(a) has an incapacity for work resulting from, or materially contributed to by, an injury; and
(b) is receiving, or but for the worker’s current weekly earnings, would have been entitled to receive, compensation in the form of weekly payments –
are reduced because –
(c) the worker no longer resides in Victoria; or
(d) the worker’s employment was terminated because of the worker’s misconduct; or
(e) the worker –
(i) has resigned; or
(ii) reduced the hours worked otherwise than in the circumstances referred to in section166
for reasons unrelated to the worker’s incapacity –
the Authority or a self-insurer may determine –
(f) not to alter the amount of compensation in the form of weekly payments paid to the worker;
or
(g) not to pay compensation in the form of weekly payments.
The defendant maintains the plaintiff resigned his employment on 23 March 2018, and therefore reduced his current weekly earnings for reasons unrelated to his incapacity and is not entitled to weekly payments in accordance with section 185(1)(e)(i) of the WIRC Act.
The plaintiff maintains section 185(1)(e)(i) of the WIRC Act is not applicable as he did resign for reasons related to his incapacity and, even if the section is applicable, the court, in the exercise of its discretion, having regard to the objects of the WIRC Act, should determine he is entitled to weekly payments in any event (Jarvis v The Salvation Army Southern Territory [2016] VSCA 175 at paragraph 33).
The only issue for the court to determine is whether section 185(1)(e)(i) is applicable, and if so, whether the court should exercise its discretion to determine the plaintiff is entitled to weekly payments.
The parties agree there is no issue with respect to the plaintiff being otherwise entitled to weekly payments in accordance with the WIRC Act.
The court heard evidence from Mr Chamani, his son, Mr Rezaei, Mr Hofen and Mr Bird. Numerous documents including medical reports and certificates of capacity were tendered by consent.

THE EVIDENCE

Mr Chamani

The plaintiff said he commenced working as a fibreglass laminator with Transport Innovators (Aust) Pty Ltd in 2010. It was his first job after coming to Australia. The work involved repairing damage to trucks using fibreglass sheets. The plaintiff said the work was physical and he did a lot of heavy lifting removing and lifting truck parts and fibreglass sheets as part of the repair work.
The plaintiff said he lived in the defendant’s factory for the first four years of his employment. During that time, his family were living in Pakistan. They came to Australia in 2014 and he then found accommodation in Cranbourne East with his family.
The plaintiff said he often had pain in his shoulders, neck and back throughout his employment and would attend the Thompson Road Clinic in Cranbourne for medical treatment at the suggestion of Mr Hofen.
The plaintiff said he injured his back in a lifting incident with the defendant on 15 May 2017. The plaintiff said he reported the injury to his boss, Mr Hofen and had two days of work. The plaintiff attended Dr Sandhu at the Southern Cross Medical Centre. The plaintiff returned to work with defendant on full-time modified duties.
The plaintiff attended Dr Prakash at the Thompson Road Clinic on 3 July 2017 with complaints of back pain and right leg pain as a result of the lifting incident. The plaintiff was prescribed Lyrica, and an MRI was arranged. Dr Prakash provided a Workcover certificate of capacity dated 3 July 2017 stating the plaintiff’s diagnosis was right sciatica and that he was fit for suitable duties with the following restrictions – work at waist level, lift 2 to 5 kilograms only (part of exhibit 19 - PCB 258).
An MRI dated 5 July 2017 concluded the following:

Right subarticular disc protrusion at L4/5 with compression of the traversing right L5 nerve root, presumably accounting for the patient’s presentation. No neural compression in the lumbo-sacral spine otherwise evident.

(Exhibit 7 - PCB 83).

Following the MRI, the plaintiff was referred to Mr Vellore, a neurosurgeon.
The plaintiff said he continued working for the defendant but the pain in his back was restricting his movements and he was finding the work more difficult.
The plaintiff said he had to continue working after May 2017 because of his family and his plans for the future. The plaintiff said he was struggling to do the work because of the pain in his back. The plaintiff said some of the work duties required two workers and he would get help from another Afghanistan worker. However, the plaintiff said he continued to do most of the work on his own and continued to work 8-hour shifts. He plaintiff said he continued to provide Workcover certificates of capacity from Dr Prakash to Mr Hofen. The plaintiff said he could not read the certificates, but Dr Prakash told him they said he could only work at waist level and only lift 2 to 5 kilograms.
The plaintiff said his mental state was affected by the injury to his back and he began to worry about his life, his future and why the injury had happened to him.
The plaintiff said he saw Mr Vellore on 31 August 2017. Mr Vellore discussed various treatment options with the plaintiff including a right L4-L5 microdiscectomy and rhizolysis. The plaintiff said he discussed this option with Mr Hofen who told him that surgery might too risky. The plaintiff said he decided not to undergo surgery because he was scared. The plaintiff said he attended Mr Vellore on 6 December 2017 with the aid of an interpreter and surgery was discussed again.
The plaintiff said his back pain was gradually getting worse over time. In December 2017, the plaintiff told Mr Hofen he was still having difficulties with work and Mr Hofen arranged for him to make the Workcover claim which he did.
Apart from going to the Thompson Road Clinic for his work issues, the plaintiff said he also went to the Stetho Health Cranbourne Medical & Dental Centre for other health issues. The plaintiff said he normally saw Dr Chamacham at that clinic. Dr Chamacham spoke Farsi which the plaintiff said was similar to Dari and he was able to communicate with him. The plaintiff said the doctors at the Thompson Road Clinic only spoke English and it was difficult to talk to them. The plaintiff said he would get a basic idea when he went to that clinic and they would normally give him a letter which he took to Mr Hofen and asked him to explain.
Apart from Lyrica, the plaintiff was also prescribed Codeine Phosphate, Temaze and Mersyndol Forte tablets and has undergone epidural cortisone injections and physiotherapy since injuring his back.
The plaintiff said, despite providing the Workcover certificates of capacity, he did perform work above and below the waist and lift weights in excess of 5 kilograms. The plaintiff said working below his waist had a bad effect on his back. The plaintiff said working above his waist was not too bad. The plaintiff said he would do work outside the restrictions on the certificates of capacity when he did not have any help.
The plaintiff said he spoke to Mr Hofen about how difficult the work was, and how much work he could do, and what work he could not do, in the last few months he worked for the defendant. The plaintiff said Mr Hofen told him there was a deadline and the work had to be finished on time. The plaintiff said he sometimes felt there was no difference between the work he was doing before May 2017 and the work he was doing after May 2017.
The plaintiff described an incident at work that happened on 22 March 2018. The plaintiff said he had gone to the toilet during a work break in the afternoon and was running late in getting back to work. The plaintiff said the supervisor was Darren, Mr Hofen’s son, and he told him off for getting back to work late after the break.
The plaintiff said he stopped work the next day which was a Friday (23 March 2018). On that day the plaintiff said he was going to fill his car up with petrol at lunchtime because he had to go to his doctor later that day. The plaintiff said Mr Hofen paid for his petrol as part of his remuneration. The plaintiff said Mr Hofen used to give him a voucher to pay for the petrol every Friday. The plaintiff said he was paid about $1200.00 nett per week plus the petrol.
The plaintiff said he went to see Mr Hofen and told him he needed to get some petrol. The plaintiff said Mr Hofen gave him the petrol card and then started talking about the toilet incident the day before. The plaintiff said Mr Hofen told him he was not working properly anymore and that he should not get the petrol card. The plaintiff said Mr Hofen forced him to give the petrol card back.
The plaintiff told Mr Hofen he had been working for him for 8 years and was upset for now being accused of not working when he was just three minutes late for work after going to the toilet. The plaintiff told Mr Hofen he had back pain and had trouble doing the work that Mr Hofen wanted him to do. The plaintiff said he was trying to say this to Mr Hofen in broken English. The plaintiff said the tone of the conversation with Mr Hofen was emotional at the start, but it ended up being an argument at the end. The plaintiff said he told Mr Hofen he could not continue working because of his pain and that he did not want to return to doing the work Mr Hofen wanted him to do. The plaintiff said he told Mr Hofen ‘Bye’ and left.
The plaintiff said he left the factory and sat in his car and cried because he was not able to continue working in his situation.
The plaintiff said he saw Dr Prakash later that day.
The plaintiff said he did not go back to work with the defendant. The plaintiff sent a text message to Mr Bird, who was Mr Hofen’s business partner, the next week. The plaintiff said he explained his situation to Mr Bird. The plaintiff said Mr Bird replied and said ‘it is what it is’.
The plaintiff said he had a good job with the defendant and felt he had a future with them but could not continue working because of his back pain.
The plaintiff said a friend of his, Naweed Jafari, helped him deal with the Workcover agent and Centrelink after ceasing work with the defendant as he was able to speak English on his behalf. Naweed contacted CGU and told them he had resigned from his employment due to his back injury and said the plaintiff wanted to get weekly payments.
The plaintiff said he has not been able to return to work because of his pain and physical limitations. The plaintiff said he saw Mr Vellore on 16 August 2018 and was referred for pain management.
The plaintiff ceased going to the Thompson Road Clinic in August 2018 and commenced seeing Dr Chamacham for his back problems. On 5 September 2018, Dr Chamacham referred him to Dr Mehr for pain management.
The plaintiff said he saw Dr Mehr in September 2018 and has continued to see or speak to him during Covid 19. Dr Mehr referred him to Dr Weekes, a pain specialist, who he saw in March 2019 and underwent a right L5 nerve root block in July 2019.
The plaintiff said he commenced seeing Dr Khan at the First Health Medical Centre in February 2019 for his back injury. He has continued to see Dr Chamachan from time to time for other health issues. The plaintiff said Dr Khan referred him to Professor Bittar for his back pain and to a psychologist for his depression and anxiety.
The plaintiff said his mental health is poor and he is very upset, dark, and emotional because of his back injury. The plaintiff said his family have suffered a lot because of his back injury and he has had suicidal thoughts. The plaintiff said he saw a psychiatrist, Dr Rahimikia, in 2019 on two occasions but stopped seeing him because of Covid 19. The plaintiff said he has told Dr Khan that his life is useless and that he wanted to end his life. The plaintiff said he saw Dr Maryam Delavari, a doctor who speaks Farsi, in 2021 before the recent lockdown and had since spoken to her about three times.
The plaintiff said he still has pain in his back and down his right leg and has difficulty standing and sitting. The plaintiff said he avoids bending down low by getting down on his knees and cannot lift anything heavy because of an increase in his pain. The plaintiff said his sleep is also disturbed. The plaintiff said his mental health has improved slightly since commencing some medication about two months ago prescribed by Dr Mehr.
The plaintiff said he cannot return to work because of his physical pain and mental state.
The plaintiff was cross-examined by the defendant.
The plaintiff agreed Mr Hofen promoted him to a Leading Hand on 5 April 2017 and, as part of that promotion, he supervised two other Afghanistan co-workers and showed them what to do.
The plaintiff was asked whether he attended the Southern Cross Medical Centre on 22 May 2017 and obtained a Workcover certificate of capacity from Dr Sandhu stating he was fit for suitable employment from 19 May 2017 to 29 May 2017 (part of exhibit B - DCB 6). The plaintiff said he could not remember seeing Dr Sandhu.
The plaintiff agreed he saw Dr Prakash at the Thompson Road Clinic on 3 July 2017 and obtained a Workcover certificate of capacity and continued to obtain certificates from Dr Prakash whilst he was working. The plaintiff agreed the certificates of capacity stated he was fit for work at waist level and lifting weights between 2 to 5 kilograms.
The plaintiff agreed he obtained a Workcover certificate of capacity from Dr Prakash dated 23 March 2018 stating he was fit for work at waist level and lifting weights between 2 to 5 kilograms (part of exhibit B - DCB 8).
The plaintiff agreed he obtained a Workcover certificate of capacity from Dr Prakash dated 25 May 2018 stating he was fit for work at waist level and lifting weights between 2 to 5 kilograms which was backdated to 19 May 2018 because he had gone to Pakistan to see his sick mother (part of exhibit B - DCB 10).
The plaintiff could not recall getting a Workcover certificate of capacity from Dr Prakash dated 12 June 2018 stating he was fit for work at waist level and lifting weights between 2 to 5 kilograms from 13 June 2018 to 10 July 2018 (part of exhibit B - DCB 12).
The plaintiff said he had a number of discussions with Mr Hofen after May 2017 concerning what work he should be doing and not doing and the ongoing pain in his back.
The plaintiff agreed he had discussions with Mr Bird about his work after May 2017 and that Mr Bird told him not to do any heavy lifting and not to strain himself when working. The plaintiff agreed Mr Bird told him to get help from other workers if he needed to lift anything heavy. The plaintiff did not remember Mr Bird telling other co-workers after May 2017 to keep an eye on what work he was doing so that he did not have to do any lifting himself.
The plaintiff said Mr Bird initially told him told him to do more supervising work than manual work after he hurt his back, but this did not continue. The plaintiff said Darren began to complain that the work he was doing was too slow.
The plaintiff said he would have to lift weights greater than 5 kilograms because the work had been allocated to him and co-workers were often not around. The plaintiff said he would always try and ask for assistance from co-workers if they were around.
The plaintiff agreed Mr Hofen had been generous to him and had allowed him to live at the defendant’s factory for the first four years of his employment. The plaintiff said Mr Hofen paid for his petrol with a petrol card on a weekly basis towards the end of his employment. The plaintiff agreed Mr Hofen would often go to the petrol station with him.

It was put to the plaintiff that Mr Hofen would give evidence that he spoke to him about the two Afghanistan co-workers that were working with him when they had the discussion on 23 March 2018. It was put to the plaintiff that Mr Hofen would say the two co-workers were starting work at 7.45am and not 7.30am and finishing work at 3.15pm and not 3.30pm and he asked the plaintiff to say something to them about their start and finish times.
The plaintiff disagreed and said the discussion with Mr Hofen on 23 March 2018 was about him getting back to work 3 minutes late after his toilet break the day before, and Mr Hofen taking the petrol card back and saying he was not working hard enough. The plaintiff said he told Mr Hofen he was not able to keep up with the work.
The plaintiff was adamant Mr Hofen did not speak to him about the two Afghanistan co-workers in the discussion on 23 March 2018. The plaintiff said the two co-workers also spoke better English than him and Mr Hofen could have spoken to them himself.
The plaintiff said he was not responsible for the two Afghanistan co-workers after May 2017 and his role was simply to show them how to do their job. The plaintiff did agree they were supposed to help him when any heavy lifting was involved.
It was put to the plaintiff that, after the conversation with Mr Hofen on 23 March 2018, he said, ‘I am leaving’ and handed in his work sheet and timecard and left. The plaintiff agreed he said words to that effect.
Despite saying earlier that he did not go back to work after 23 March 2018, the plaintiff agreed he went back to the factory on the following Tuesday (27 March 2018) and handed in his keys and got his belongings. The plaintiff could not recall Mr Hofen asking him to take 2 weeks holiday and work things out. The plaintiff said Mr Hofen told him he had to work properly, and he told Mr Hofen he could not continue working because of his pain. The plaintiff said he told Mr Hofen that he had no choice but to leave work because of the pressure being put on him.
The plaintiff was asked whether he spoke to Mr Bird after speaking to Mr Hofen. The plaintiff said he did not talk to Mr Bird but sent him a text message a few days later. The plaintiff said he thought he told Mr Bird that he had always been good to him and that he had had an argument with Mr Hofen about not being able to do the work that he had been able to do before his injury. The plaintiff said Mr Bird replied ‘it is what it is’ and that these things happen. The plaintiff said he did not contact Mr Bird again.
The plaintiff was asked how he was able to send a text to Mr Bird given his English problems. Th plaintiff said Naweed helped him the send the text. The plaintiff was asked whether he still had he text that he had sent Mr Bird. The plaintiff said he had sent the text on a Samsung phone which he no longer had as he had a new phone.
It was put to the plaintiff that Mr Bird would deny receiving any text messages from the plaintiff. The plaintiff said he had no reason to lie about sending a text to Mr Bird.
It was put to the plaintiff that he would have kept a copy of the text message if he had sent it to Mr Bird. The plaintiff said he was uneducated and could not predict the future and know back then that he should have kept his Samsung phone.
The plaintiff was asked where the phone was. The plaintiff said he was not sure but thought his son might have sold it.
The plaintiff was referred to an affidavit he had sworn on 31 July 2020 (Exhibit 12 - PCB 224). Paragraph 25 of the affidavit was read to him:

My employer had been pushing me to return to full-time work. I couldn’t cope with this anymore which led to a lot of disagreements with my employer and in late March 2018 I stopped working. I knew I wasn’t going to get back to my full duties and was in a lot of pain. I also didn’t want to put up with the employer’s bullying anymore. I felt like they were trying to force me out.

The plaintiff was asked what he meant in this paragraph. The plaintiff said he was told he had to return to his previous work but said he could not keep up and needed to work at his own pace. The plaintiff said everyday he was being told to ‘do this and do that’ which put a lot of pressure on him, and the other workers would laugh at him. The plaintiff agreed he had returned to working full-time after his injury on 17 May 2017 but said that he did not have a choice. The plaintiff agreed his work hours were not restricted in his certificates of capacity.
It was put to the plaintiff that the other workers did not laugh at him and that he had not referred to that in his affidavit and he was making it up. The plaintiff said he told Mr Hofen the other workers were laughing and smiling at him, because he was walking and working differently. Mr Hofen told him they were teasing him and to ignore it. The plaintiff said he did not think it was important, but it did happen, and he was not lying.
The plaintiff was referred to a medico-legal report from Dr Sadeghi dated 9 May 2019 (Exhibit 8 - PCB 88). The plaintiff was asked whether he gave Dr Sadeghi the following history:

Mr Chamani continued his duties until May 2018 when his employer asked him to leave his job as the manager believed that Mr Chamani is not working as hard as expected. Mr Chamani has not worked since.

The plaintiff said he did not give Dr Sadeghi that history. The plaintiff said he told Dr Sadeghi that, after his injury, his employer wanted him to continue working as he worked before, and he was not physically capable of that and had to leave his employment.
It was put to the plaintiff that he had not the truth about what happened when he finished work on 23 March 2018 and that, if he had not resigned, he would have been able to stay at work doing modified duties pursuant to the certificates of capacity that he continued to obtain.
It was put to the plaintiff the defendant’s evidence would be that they would have kept him at work if he had not resigned on 23 March 2018. The plaintiff disagreed and said he was not able to continue doing the work that the defendant wanted him to do. The plaintiff said he complained to Mr Hofen about not being able to keep up with the work and the pain he was having when he felt the work was too hard. The plaintiff said he would have continued working with the defendant if he was fit but was unable to keep up with the work required of him.
It was put to the plaintiff that Mr Hofen told him to ask the two Afghanistan co-workers for assistance with heavy lifting. The plaintiff said he would ask the co-workers to help but, Darren would often complain about the co-workers being lazy and not doing much work.
The plaintiff agreed he received a letter from Mr Hofen dated 21 May 2018. (Exhibit E -DCB 89). The letter read:

BAQIR CHAMANI

Baqir

Jeff & I would like to take this opportunity to thank you for your loyal service to our company and the appreciation of your work ethics in the time that you were employed at Freezer Back Trailer & Van Hire.

We are deeply sorry that you made your decision to leave, I only wish that you had taken my advice which was to take a couple of weeks off and rethink your decision.

We wish you all the best in what you do in the future. If you need any reference please feel free to contact either Jeff or myself.

Please continue to seek medical help for you (sic) problem. Your CGU Workers Compensation claim number is 0417004712 you need this information for any doctors or medical visits that you may need in the future for your back problem.

Once again we wish you and your family all the best in the future.

Sincerely

Dennis Hofen

Director

Freezer Back Trailer & Van Hire P/L.

When asked whether the plaintiff thought about going back to work when he received the letter, the plaintiff said, he knew if he returned to work, he would have been in the same position as before with his back.
The plaintiff agreed he saw Dr Prakash on 23 March 2018. The following clinical notes of Dr Prakash were read to the plaintiff:

Friday March 2018 14:49:53

Dr Anuradha Prakash

Back pain same.

Says has resigned his job today.

His boss said he will cut his payment for 3 min early he went and upset with it.

Visit type;

Surgery consultation.

Reason for contact:

Right sciatic pain.

(Part of exhibit 20 - PCB 287)

The plaintiff agreed with the clinical notes made by Dr Prakash.
The plaintiff agreed he saw Dr Prakash on 12 June 2018. The following clinical notes of Dr Prakash were read to the plaintiff:

Tuesday June 12 2018 11:34:41

Dr Anuradha Prakash

Asking for Centrelink certificate

Says no one paying

He has voluntarily quit his job

Visit type

Surgery consultation

Reason for contact

Right sciatic pain

Later says needs Workcover letter too

Advised the claim is active, to see neurosurgeon.

(Part of exhibit 20 - PCB 286)

The plaintiff could not remember what he told Dr Prakash at that attendance. The plaintiff said he would have told Dr Prakash something like ‘I cannot continue in accordance with what is expected, and I had no choice but to leave.’
When pressed on whether he told Dr Prakash he had ‘voluntarily quit his job’, the plaintiff said he would have told Dr Prakash that he had no choice other than to leave the job because they wanted more work out of him.
The plaintiff agreed he saw Dr Prakash on 13 July and 7 August 2018 and commenced seeing Dr Chamacham from 21 August 2018. The plaintiff said he was having language difficulties with Dr Prakash and he told him to see a doctor who spoke his language.
The plaintiff said he had no issues communicating with Dr Chamacham. The plaintiff agreed he saw Dr Chamacham on 24 August 2018 and complained of anxiety and stress, not feeling suicidal and having trouble sleeping. The plaintiff agreed with the suggestion that his psychiatric problems started about then.
In re-examination, the plaintiff was asked what he meant when Dr Prakash recorded ‘His boss said he will cut his payment for 3 min early he went and upset with it’. The plaintiff said he was referring to the issue with the toilet break the day before. On 23 March 2018, the plaintiff said Mr Hofen questioned him about the start and finish time of the toilet break and the plaintiff said he tried to explain he was at the toilet. The plaintiff said he was upset with what Mr Hofen said and that is what he told Dr Prakash.
The plaintiff said he had difficulty talking to Dr Prakash and would have to use hands to communicate. On one occasion, he did take a friend to help, and once or twice the medical clinic arranged an interpreter when he attended.
The plaintiff was asked whether he could remember when his co-workers laughed or smiled at him. After his injury, the plaintiff said he wore a clamp or brace on his leg to help with the pain, and the co-workers would sometimes look at him and laugh.
The plaintiff said Mr Hofen and Mr Bird did not speak Farsi or Dari.

BASIR REZAEI

Mr Rezaei gave evidence and said he was the plaintiff’s son.
Mr Rezaei said his father had a Samsung phone about one or two years ago. After his father got a new phone, the Samsung phone was reset, and he thought they sent it his cousin in Afghanistan.
Mr Rezaei was not cross-examined.

NAWEED JAFARI

Mr Jafari gave evidence and said he was currently employed by Jobs Victoria as a jobs advocate working with overseas refugees. Mr Jafari said he was born in Afghanistan and came to Australia in 2007. He was a Level 2 Accredited Interpreter in the Hazaragi dialect.
Mr Jafari said he met the plaintiff in or about 2008. He said he had seen the plaintiff on and off since then at local community functions. However, he had not had much contact with the plaintiff over the last two years.
Mr Jafari said he was Vice-President of the Afghanistan Cultural Association and had helped the plaintiff in the past as he had a responsibility to help members of the Afghan community. He had helped the plaintiff with English issues such as writing letters and sending emails to the Immigration Department because he had family overseas.
Mr Jafari said he recalled the plaintiff hurting his back at work when he was working in a factory but could not remember when it was. Mr Jafrai thought he had helped the plaintiff send a text message to his employer but could not remember when he did this. Mr Jafari said he wrote a text message to the plaintiff’s boss along the lines of the plaintiff having lost his job and being dedicated and attached to his job and it was not fair that they had ‘kicked him’ or something along those lines.
Mr Jafari said he was not involved with any reply to the text message.
Mr Jafari was not cross-examined.
Apart from the tendering of documents and medical reports, that was the evidence on behalf of the plaintiff.

DENNIS HOFEN

105 Mr Hofen was a director of the defendant until it ceased trading on 31 January 2020. The defendant was now deregistered.

Mr Hofen said the plaintiff had initially been employed by Transport Innovators Australia Pty Ltd, a company of which he had also been a director. Mr Bird had also been a director of that company and the defendant.
In 2015 the plaintiff commenced working for the defendant in the same position.
Mr Hofen said the plaintiff injured his back at work in May 2017. After the injury, Mr Hofen said the plaintiff was placed on light duties and given two co-workers to supervise and assist with his work. The plaintiff and the co-workers were from Afghanistan.
Mr Hofen said the plaintiff provided Workcover certificates of capacity from the Thompson Road Clinic, which was the company’s medical clinic. The certificates certified the plaintiff fit to work at waist level and lift between 2 to 5 kilograms.
Mr Hofen was asked what his observations of the plaintiff were between May 2017 and March 2018. Mr Hofen said, when he saw the plaintiff at work during that period, the plaintiff did his work well. However, they did have to pull the plaintiff up because he continued to do some heavy lifting. Mr Hofen said they had to tell the plaintiff to use his two co-workers for assistance rather than let them stand there and watch him do the lifting. Mr Hofen said he spoke to the plaintiff about this and told the other workers to step in and help.
Mr Hofen said he had no recollection of the plaintiff telling him he was having difficulties with his work. As far as he was concerned, the plaintiff’s standard of work up to 23 March 2018 was always very good.
On 23 March 2018, Mr Hofen said he spoke to the plaintiff about midday about the two co-workers being late to start work in the morning, being late back to work after lunch, and finishing work 15 minutes early. Mr Hofen said he had to explain this to the plaintiff a couple of times as the plaintiff thought he was being criticised about his own work performance. Mr Hofen said he was telling the plaintiff to control the two co-workers.
Mr Hofen said he did not speak to the plaintiff about going to the toilet the day before.
Mr Hofen said there was no petrol card as such. From time to time, the plaintiff would use Mr Hofen’s credit card to buy petrol. Mr Hofen said, more often than not, he would normally go to the petrol station with the plaintiff and pay for the plaintiff’s petrol himself. This was usually on a Friday when the workers would finish early. Sometimes, the plaintiff would take the credit card and use it himself as it had a limit of $100.00. Mr Hofen said the plaintiff was his longest employee and he wanted to reward him for doing a good job.
Mr Hofen believed there was no issue involving his credit card on 23 March 2018. As far as he recalled, the plaintiff did not ask to use the credit card, and he did not ask the plaintiff to give the credit card back.
Mr Hofen said, after speaking to the plaintiff about the co-workers, the plaintiff said he was finishing up as the plaintiff thought he was having a go at him. The plaintiff walked out of the office and, two minutes later, came back with his timesheet, put it on the desk and walked out again. Mr Hofen said the plaintiff did not appear to know what he was doing when he left the office.
Mr Hofen said the plaintiff came back to the factory the next week and handed in his keys and collected his personal items. Mr Hofen said he tried to speak to the plaintiff about taking a couple of weeks off to think about it. The plaintiff replied and said he was finished.
Mr Hofen was asked about an employee note concerning the events on 23 March 2018 (Exhibit F - DCB 90). Mr Hofen said he created the note on the defendant’s QuickBooks accounting software. The employee note read:

23/3/18

Baqir walked out of his employment work at 12 Noon on Friday 23/3/18 after a discussion between Dennis & himself over start & finishing times as Mohammad is in charge of 2 other fibreglass workers, after the short discussion on him leading the way about work starting & finishing times and setting an example for the other workers (which he had done previous to our discussion) and making sure that they started at the right times in the mornings 7.00am Monday to Thursday and 6.00am Fridays, finishing work at 3.30pm Monday till Thursday and 2.30pm Friday. As I was trying to explain to him that they were arriving late to start work on some days and finishing work up to 15 minutes before finishing time to get changed to go home, Mohammad then started to argue with me saying that I was having a go at him about his times, and he couldn’t understand that I was not having a go at him personally, but for him to explain to the 2 other workers under his control of the start and finish times. Without any further discussion Mohammad told me that he was leaving and then handed his worksheet & timecard into the office, we do not know when or if he is coming back to work.

Mohammad Baqir Chamani retuned to the factory on March 27^th 2018 at 3.45pm he handed in his keys and picked up all of his personal belongings & his tools. I tried to convince him to have a couple of weeks holidays and work it out, but he told me he was finished as of Friday 23-3-2018 at 12 noon.

Dennis

28 - 03 - 2018

Mr Hofen wrote to the plaintiff on 21 May 2018 because he wanted to explain to the plaintiff that he did not want him to leave the defendant’s employment, that he appreciated the plaintiff’s work and wished he had thought about it before leaving work.
Mr Hofen said he would have continued to employ the plaintiff on suitable duties if he had not resigned on 23 March 2018. Mr Hofen said the plaintiff could have continued working as before with the help of the two co-workers.
Mr Hofen said the defendant’s business was sold in 2020 and the factory was taken over by a new company, and it would have been up to them as to whether they would have continued to employ the plaintiff.
Mr Hofen was cross-examined.
Mr Hofen said it had been difficult to communicate with the plaintiff over the years because he did not understand English. However, he thought they had been able to understand each other in any event. If the plaintiff did not understand what was being said, the plaintiff would normally ask again.
Mr Hofen was asked whether he thought the plaintiff understood the discussion on 23 March 2018. Mr Hofen said he had to discuss the matter with the plaintiff a couple of times. Despite this, Mr Hofen said the plaintiff did think he was having a go at him and there was a breakdown in the communication between the plaintiff and himself. According to Mr Hofen, the plaintiff could not understand that he was not having a go at him about his work performance. Mr Hofen said there was no meeting of the minds because he did not have a chance to properly explain to the plaintiff what he was trying to say. Mr Hofen said the plaintiff was of the view that he was being attacked personally.
Mr Hofen said the plaintiff had always been a good and hard worker and he had never had any issues with him over the years. Mr Hofen said the plaintiff had always been loyal to the defendant and treated the company as his own. Mr Hofen said the plaintiff’s work was physical at times and the plaintiff had often complained about various aches and pains as a result of the work he did. Mr Hofen said the defendant funded any medical treatment the plaintiff had, and the plaintiff would normally come good

Mr Hofen said the plaintiff was a trusted employee and had slept in the defendant’s factory for the first four years of his employment. The plaintiff had been given the keys to the factory gate and the factory and there were no concerns with his honesty over the time he was employed.
Mr Hofen said he would go on the factory floor when the plaintiff was employed but did not necessarily observe the plaintiff working. Mr Hofen said Mr Bird would have been on the factory floor more than him.
Mr Hofen said there were medical restrictions on what the plaintiff could lift after he injured his back in May 2017. The defendant’s workers were made aware and told to stop the plaintiff from lifting heavy weights. However, Mr Hofen said the plaintiff was stubborn and would still lift weights in excess of his medical restrictions. Mr Hofen said he did not see the plaintiff lift any heavy weights from floor level. The normal weights lifted by the plaintiff would have been about 5 kilograms. The plaintiff would have to occasionally carry 20 litre buckets of fibreglass resin from one end of the factory to the other end. These buckets would weigh in excess of 5 kilograms. Weights were also used to keep fibreglass sheets flat on the factory floor. These weights were stored in racks and on the floor. Mr Hofen said he did have to tell the plaintiff he was doing too much physically at work. Mr Hofen said the plaintiff was of the view he could still work as he did before he sustained his back injury.
Mr Hofen said his son, Darren, did work for the defendant as a labourer. He was not employed as a Leading Hand. Mr Hofen said he could not recall Darren making any complaints about the plaintiff. Mr Hofen said he was no longer on speaking terms with his son and had lost contact with him.
Mr Hofen said he was ‘pretty much 100%’ sure the plaintiff did not ask for his credit card on 23 March 2018. Mr Hofen agreed the plaintiff would normally ask to use his credit card to buy petrol on a Friday at about lunchtime. Mr Hofen agreed the plaintiff would come to his office and ask to use the credit card. Mr Hofen said he did not know why the plaintiff came into his office on 23 March 2018 but, once he was there, he then had a discussion with him about the two co-workers. Mr Hofen said the two co-workers would not listen to him and he asked the plaintiff to speak to them.
Mr Hofen said he was unaware of the plaintiff having been pulled up by Darren for spending too long in the toilet the day before.
Mr Hofen said the plaintiff started to defend himself during the discussion on 23 March 2018 and did ‘get his back up a bit’ because he thought he was being told off.
In answer to a question from the court, Mr Hofen agreed that there had been a clear breakdown in communication between the plaintiff and himself on 23 March 2018.
That was the extent of Mr Hofen’s evidence.

JEFF BIRD

Mr Bird said he had been a director of the defendant until it stopped trading.
Mr Bird recalled the plaintiff injuring his back in May 2017. After the injury, he said the plaintiff’s work duties were reduced in accordance with certificates of capacity which put restrictions on what weight he could lift and only being allowed to work at waist level.
Mr Bird could not say if those restrictions were observed as he was only at the defendant’s factory one or two days a week. Mr Bird said the plaintiff had always been a keen worker and may have worked outside the restrictions. Mr Bird said the defendant did provide two co-workers to help the plaintiff after the injury to his back but was not sure when they started with the defendant.
Mr Bird thought the plaintiff was working within his restrictions when he did see him at work.
Mr Bird said he not been involved with the plaintiff on 23 March 2018 as he was away. By the time he got back, the plaintiff had left the defendant’s employment.
Mr Bird said he could not recall getting a text message from the plaintiff after 23 March 2018.
Mr Bird said the defendant would have continued to employ the plaintiff within his medical restrictions if he had not resigned. Mr Bird said the defendant’s employees continued with the new employer (Transport Innovators Pty Ltd) after the defendant ceased trading in 2019 and, he would have expected the plaintiff to have continued his employment with them. Mr Bird said he was now the factory manager and a consultant with the new employer.
Mr Bird was cross-examined.
Mr Bird said he had known the plaintiff since 2010. Mr Bird said the plaintiff was a good, honest, and hard worker and was maybe, too hard a worker for his own good.
Mr Bird said the plaintiff’s English skills were very limited.
Mr Bird said the plaintiff was told not to work outside the restrictions on his certificates of capacity but said he was not on the factory floor long enough to see what the plaintiff was doing.
Mr Bird said he had looked at his phone and had not found any text messages from the plaintiff. He said he now had a new phone and was not sure whether the text messages on the old phone had gone over to the new phone. Mr Bird said the text messages may have been deleted over time. Mr Bird said he could not say whether the plaintiff had texted him or not without having the text messages to look at now. Mr Bird said it was difficult to remember what text messages he would have got in the past.
In re-examination, Mr Bird said he did not have the plaintiff’s name in his phone contacts.

MEDICAL EVIDENCE

Given the issue in dispute, I do not intend to refer to the medical evidence in detail. In any event, the medical evidence does not seem controversial.
Mr Vellore provided a report dated 14 December 2018 (Exhibit 4 – PCB 59). Mr Vellore initially examined the plaintiff on 31 August 2017 and obtained the following history:

…he was a 53-year-old gentleman who gave a history of having sustained a work-related injury about three months prior while lifting some heavy fibreglass in his company in Dandenong. Since then, he had noticed significant low back pain with right-sided radiculopathy in the L5 distribution. The pain travelled down his lateral leg into the ankle. He had tried Lyrica which did not help him. He did not have any gait or sphincteric disturbance as such. Examination on that day demonstrated mild ankle dorsiflexion weakness when he tried to walk on his heels of 4+/5 on the right side. There was altered sensation in the right L5 dermatome. His MRI demonstrated right L4 - L5 disc prolapse compressing the L5 nerve root.

Mr Vellore discussed surgery with the plaintiff and sought approval from CGU to perform a right L4 - L5 microdiscectomy and rhizolysis. The plaintiff was seen on 6 December 2017 and 31 August 2018. On the last occasion the plaintiff did not want surgery and was referred for pain management. Mr Vellore said future treatment would either be surgery or pain management.
The plaintiff was examined by Professor Bittar on 6 March 2019, 25 March, and 21 July 2020. A report was dated 21 March 2021 (Exhibit 6 - PCB 74). The plaintiff provided a history of sustaining a back injury, radiating into his leg, on 15 May 2015 when attempting to pull a large fibreglass plate attached to the wall. Professor Bittar made a diagnosis of L4/5 disc prolapse with L5 radiculopathy and referred the plaintiff to Dr Gavin Weekes for treatment. An MRI undertaken on 15 January 2020 demonstrated an ongoing right L4/5 disc prolapse with L5 nerve root compression. When first seen the plaintiff was totally incapacitated for work. When last seen the plaintiff reported worsening of his back pain but improvement in his leg pain. If the leg pain deteriorated, consideration should be given to a right-sided keyhole decompression at L4/5. The plaintiff’s condition was consistent with the stated cause and he did not have a current work capacity for pre-injury duties or suitable employment.
Dr Weekes reviewed the plaintiff on 19 March 2019 on referral from Dr Mehr and Professor Bittar and provided a report dated 13 January 2021 (Exhibit 5 - PCB 71). On 22 July 2019, Dr Weekes performed a right L5 nerve root block with local anaesthetic and steroid. On 18 November 2019, Dr Weekes performed a right L5 DRG PRF procedure. When last seen on 6 January 2020 the plaintiff was unfit for pre-injury and alternate duties.
Dr Mehr saw the plaintiff on 25 September 2018 and treated him throughout 2019 and 2020. He provided a report dated 9 December 2020 (Exhibit 10 - PCB 98). The plaintiff gave a history of trying to pull a big fibre glass plate attached to a wall whilst in a semi-squat position and feeling significant pain in his lower back radiating down to his leg. Dr Mehr determined the plaintiff’s physical issues were:
· Chronic lumbar spine pain due to aggravation of lumbar spondylosis, the reasons of pain is mostly discogenic pain related to disc damage at L4/5 level;
· A right L5 radiculopathy proved by nerve conduction study and EMG and electromyography. Also, by diagnostic procedures (right L5 nerve root block).
Dr Mehr stated the plaintiff’s condition was consistent with his complaints, his clinical findings, investigations, and the mechanism of injury. The prognosis for a return to pre-injury work or any other physical work was poor due to the physical restriction caused by his chronic pain condition.
The defendant tendered reports from Mr Gale dated 4 February 2020 (Exhibit C - DCB 63) and Dr Slesenger dated 6 April 2021 (Exhibit D - DCB 71).
Mr Gale’s examination related to an impairment assessment undertaken on 4 February 2020. Mr Gale stated the plaintiff may have suffered intervertebral disc damage with neurological symptoms affecting his lower extremities, as a result of cleaning and removing fibreglass from a container in May 2017. Whilst Mr Gale said the physical examination findings did not support a persistent physical radiculopathy affecting the lower extremities, the plaintiff did have ongoing pain attributable to his employment and, it was probably impracticable to consider placing him back within the workforce.
With respect to the plaintiff’s lower back injury, Dr Slesenger found the following diagnosis:
·     Soft tissue injury;
·     Aggravation of degenerative disease of the lumbar spine;
·     Chronic lower back pain with radiating features with confirmed evidence of radiculopathy.
Dr Slesenger said the prognosis was guarded and the plaintiff could not return to his pre-injury duties as the job demands were outside his capacity limits. The plaintiff could return to alternative duties with restrictions, namely:
·     No push, pull, carry, or lift over 10 kg on an occasional basis, 5 kg on a repetitive basis;
·     Avoid prolonged static postures;
·     Avoid exposure to whole body vibration.
Dr Slesenger initially said the plaintiff could return to work 4 hours a day, 4 days a week, increasing to pre-injury hours over 8 to 10 weeks.

SUBMISSION OF THE DEFENDANT

Mr McKenzie, counsel for the defendant, confirmed the only issue for the court to determine concerned the applicability of section 185(1)(e)(i) of the WIRC Act. If weekly payments of compensation were reinstated, there was no issue with respect to the plaintiff’s ongoing entitlement to weekly payments of compensation beyond 130 weeks.
Mr McKenzie submitted the preconditions of section 185(1)(a) and (b) had been satisfied in that:
· the plaintiff had an incapacity for work resulting from, or materially contributed to by, an injury; and
· is receiving, or but for the worker’s current weekly earnings, would have been entitled to receive, compensation in the form of weekly payments.
Mr McKenzie submitted the relevant focus of the proceeding was whether the plaintiff had resigned for reasons unrelated to his incapacity which was a matter for the court to determine on the facts.
Mr McKenzie accepted the plaintiff sustained a compensable injury to his back on 17 May 2017 and was thereafter only fit for modified duties in accordance with his certificates of capacity.
The plaintiff initially provided a Workcover certificate of capacity from Dr Sandhu (Southern Cross Medical Centre) from 19 May 2017 to 29 May 2017 saying he was fit for:

Light duties only. Avoid lifting greater than 7.5 kgs. Avoid repetitive bending and twisting of the back. Rotations of duties recommended.

(Exhibit B - DCB 6)

Thereafter, apart from a short period in February 2018 when the plaintiff was incapacitated for work because of a laceration to his scalp, the plaintiff otherwise provided Workcover certificates of capacity from Dr Prakash (Thompsons Road Clinic) from 3 July 2017 to 10 July 2018 stating he was fit:
· to work at waist level;
· to lift 2 to 5 kgs only’

(Exbibit 19 - PCB 258 to 283; part of exhibit B - DCB 6).

As of 24 August 2018, Dr Chamacham provided Workcover certificates of capacity to 15 January 2019 stating the plaintiff was fit for suitable employment as follows:

At this stage can only do office duties. Can drive his own car, no lifting, no standing or sitting long hours. Needs stretching time after every 1 hour of sitting.

(part of exhibit B - DCB 14).

Mr McKenzie submitted the plaintiff continued to perform modified duties on full-time hours from 19 May 2017 to 23 March 2018. Whilst Mr Hofen and Mr Bird conceded the plaintiff did not always adhere to the medical restrictions, it was submitted they did their best to get the plaintiff to conform to those restrictions. Two co-workers were asked to assist the plaintiff with his duties following his injury. The attendances by the plaintiff at the Thompson Road Clinic from 3 July 2017 to 23 March 2018 did not suggest he was not capable of performing modified duties. Thereafter, the plaintiff continued to obtain similar certificates to 24 August 2018 when he then changed to Dr Khan.
Mr McKenzie submitted the evidence supported the proposition the plaintiff was capable of performing modified duties to 23 March 2018 and would have continued to have been capable of performing modified duties, after 23 March 2018 if he had not resigned.
The defendant’s letter to the plaintiff dated 21 May 2018 indicated that the plaintiff was a valued employee, and that the defendant was sorry the plaintiff had resigned.
The plaintiff and the defendant provided differing accounts as to what happened on 23 March 2018. The plaintiff was adamant he had been reprimanded after going to a toilet break.
The file note created by Mr Hofen on 28 March 2018 represented the defendant’s version of events on 23 March 2018. The defendant submitted Mr Hofen was a creditable witness and his file note was a contemporaneous note of what happened and supported his evidence.

172 The plaintiff attended Dr Prakash later that day. Dr Prakash recorded the plaintiff’s back pain was the same which Mr McKenzie submitted was significant.

Mr McKenzie submitted it did not matter what the court eventually determined took place on 23 March 2018 as neither version meant the plaintiff had resigned for reasons related to his incapacity.

174 Mr McKenzie said the evidence also did not support the plaintiff had a psychiatric injury as of 23 March 2018. The plaintiff’s evidence that other workers had laughed at him leading up to 23 March 2018 should not be accepted. The plaintiff had not referred to that aspect in his affidavit. The plaintiff’s evidence was that his psychiatric symptoms first emerged when he complained to Dr Chamacham on 24 August 2018.

In any event, even if the court accepted the plaintiff had been picked on by workers in some way prior to 24 March 2018 and that his resignation was somehow related to his ‘pride’, his resignation was not based on any incapacity as a result of his back injury. The plaintiff’s incapacity was not as a result of a primary psychiatric injury.
On the facts, the plaintiff had simply made a decision to resign and leave his employ for reasons unrelated to his incapacity. The defendant’s evidence was that Mr Hofen tried to convince the plaintiff to take a two-week holiday and think about what he was doing. The words ‘unrelated to the workers incapacity’ in section 185(1)(e) of the WIRC Act were informative in making an assessment on the facts. The simple fact was that the plaintiff’s back pain was the same before and after 23 March 2018 and his resignation was unrelated to his incapacity.

SUBMISSION OF THE PLAINTIFF

Mr Allan, counsel for the plaintiff, submitted that, whilst the notice dated 24 May 2018 determined that the level of the plaintiff’s current weekly earnings was reduced on the basis, he had resigned his employment for reasons unrelated to his incapacity, the notice stated the reduced weekly payment amount was $0.00.
Mr Allan submitted the notice should be set aside as the defendant had not discharged its onus of proof in establishing the plaintiff had resigned for reasons unrelated to his incapacity. The defendant had the onus of proof as it was asserting there had been a change in circumstances (Green v VWA [1997] 1 VR 364 at 381 to 382).

179 Alternatively, the court had a general discretion to reinstate the plaintiff’s entitlement to weekly payments of compensation in accordance with the decision of Jarvis v The Salvation Army Southern Territory ([2016] VSCA 175).

Mr Allan submitted the plaintiff was incapacitated as a result of a compensable injury to his back when he resigned, and the only reasons relevant for his resignation were the reasons of the plaintiff.
For the defendant to rely on the application of section 185(1)(e)(i) of the WIRC Act, the defendant had to establish that the reasons for the plaintiff’s resignation were not linked in any way to his incapacity.
This was illustrated by the decisions of Magistrate Saines in Knowles v Wesfarmers Ltd (an unreported decision delivered on 30 June 2015) and Magistrate Garnett in Lister v LD & D Foods ([2016] VMC0190) with respect to circumstances where workers had resigned their employment against a background of having a compensable injury.
In Knowles, Magistrate Saines considered the operation of section 114(2A) of the Accident Compensation Act (1985) (as amended) (the AC Act), the predecessor to section 185 of the WIRC Act. Magistrate Saines found the preconditions within paragraphs (a), (b), (c) and (e) of section 114(2A) had been satisfied. Accordingly, the defendant was entitled to make a determination not to pay weekly payments of compensation having regard to those subsections. The primary basis for the defendant’s denial was that the plaintiff, having continued to work after suffering a compensable injury, resigned from work to move interstate. On the facts, Magistrate Saines found the worker made a unilateral decision, which was her right, to resign and leave her employment and move interstate. The decision was not related to any incapacity for employment. Magistrate Saines further ruled that he was unable to find any unfairness, error, or miscarriage of the exercise of the defendant’s discretion pursuant to section 114(2A)(g) of the said Act.
In Lister, Magistrate Garnett also considered the operation of section 114(2A) of the WIRC Act in circumstances where the plaintiff had a compensable injury to her right arm/shoulder and had returned to work on full time modified duties. Thereafter the plaintiff resigned after consulting with her doctors and being told she would be unable to return to her pre-injury duties. Magistrate Garnett found the plaintiff’s decision to resign was based on the fact she was frustrated and dissatisfied with the modified duties and realised that she would be unable to return to her pre-injury duties. It was reasonable and appropriate for her to consider her future employment options. Accordingly, section 114(2A) had no application. Even if section 114(2A) had applied, Magistrate Garnett said he would have exercised his discretion in favour of the plaintiff having regard to the decision in Jarvis.
Mr Allan submitted the plaintiff was a creditable witness who had told the truth. Both Mr Hofen and Mr Bird gave evidence the plaintiff was a trusted employee and did not have a bad word to say about him as an employee of the defendant.

The defendant was treating this case as if, the plaintiff had not participated in a return-to-work program, which was incorrect.
The only issue for the court to consider is what were the plaintiff’s reasons for his decision to resign and were they related to his incapacity. At the meeting on 23 March 2018, there was clearly no meeting of the minds between the plaintiff and Mr Hofen. The plaintiff did not understand what Mr Hofen was saying to him.
The evidence of the plaintiff was that, leading up to 23 March 2018, he had been working outside the medical restrictions set out in his certificates of capacity. To an extent, Mr Hofen and Mr Bird’s evidence also supported this was the case. If it was accepted that the plaintiff was working outside his medical restrictions, it was open to accept the plaintiff was working under difficulty and in pain. The MRI scan of 5 July 2017 concluded the plaintiff had a significant injury to his disc and surgery had been suggested by Mr Vellore. It was against this background that the plaintiff had continued working.
Mr Allan submitted the court should accept the plaintiff’s evidence concerning the toilet break on 22 March 2018. The defendant had not challenged the plaintiff’s evidence as to what had happened that day.
The defendant did not call Darren to dispute what the plaintiff had said about him. The plaintiff’s evidence about what happened on 22 March 2018 was the only account of the incident and should be accepted by the court.
In the plaintiff’s mind, he was not able to work to the level he had worked before injuring his back and he felt he was being targeted. In the plaintiff’s mind, being told off by Darren after the toilet break occurred because of his incapacity and not being able to do what he used to do.
With respect to the conversation on 23 March 2018, the issue of the credit card was a side issue. Honest recollections can vary 3 ½ years after the event. However, Mr Hofen did agree the plaintiff would normally come into his office on a Friday at about 12.00pm and ask to use his card to fill his car with petrol.
Mr Allan accepted Mr Hofen did raise issues concerning the two co-workers with the plaintiff, but the court should accept the plaintiff’s evidence that he was being told off because of the toilet break and his belief that Mr Hofen was withholding his credit card because of his incapacity for work. The plaintiff’s evidence was clear in that he thought the conversation on 23 March 2018 was happening because he was not able to do what he used to do.
The note of Dr Prakash on 23 March 2018 supported the plaintiff’s version of the conversation concerning the toilet break and being upset.
Mr Allan submitted the defendant did not put to the plaintiff that he resigned for reasons unrelated to his incapacity. Mr Hofen’s version of the conversation was put to the plaintiff and, in this respect, the plaintiff’s account was plausible.
Given the plaintiff’s evidence about the toilet break, his struggles at work because of his back injury, his issues with fellow workers laughing at him, which was alluded to in his affidavit, the court should find the plaintiff was a creditable witness and did resign for reasons related to his incapacity.
Alternatively, the court should exercise its discretion and reinstate the plaintiff’s entitlement to weekly payments having regard to the general circumstances of the plaintiff’s injury and the resultant effect on him. This was against a background of the evidence that the plaintiff was a loyal and diligent worker who had continued working with substantial restrictions.
Mr Allan submitted, in exercising its discretion, the court should also consider that the defendant has not challenged the plaintiff’s ongoing incapacity and no issue has been raised concerning any entitlement to compensation after the second entitlement period,
With respect to incapacity, the medical evidence was largely to the effect the plaintiff had no current work capacity and would not be able to return to work with the defendant given his current restrictions. The defendant’s evidence that the plaintiff would have continued working for the defendant had he not resigned ignored the fact that the defendant’s 52-week obligation to keep the plaintiff working had expired and the defendant was now no longer operating. Any suggestion the new entity would have continued employing the plaintiff was speculation.

REPLY OF THE DEFENDANT

Mr McKenzie said Mr Hofen and Mr Bird gave evidence that the plaintiff would have continued to have been employed, if he had not resigned. Any issues concerning the defendant’s obligation with respect to maintaining the plaintiff’s employment after the 52-week period was not put to either of them
The evidence of Mr Hofen was that he was no longer in contact with Dennis, and this was an adequate explanation as to why Darren did not give evidence.
The fact that the plaintiff had now exceeded the second entitlement period was not sufficient for the court to exercise its discretion to reinstate the plaintiff’s entitlement to weekly payments of compensation if the preconditions to section 185(1)(e)(i) had otherwise been met. There was nothing exceptional in the matter to justify the court exercising its discretion in favour of the plaintiff.

ANALYSIS

203 Pursuant to section 185(1)(e)(i) of the WIRC Act, if the current weekly earnings of a worker who has a work-related injury causing incapacity are reduced because the worker resigned for reasons unrelated to the worker’s incapacity, the Authority may determine not to pay compensation in the form of weekly payments or not to alter the amount of compensation.

204 Section 114(2) of the Accident Compensation Act (the AC Act) is the predecessor to section 185 of the WIRC Act.

205 The question of the proper construction of section 114(2) was considered by the Court of Appeal in Jarvis v Salvation Army ([2016] VSCA 175). The Court of Appeal held that it is the role of the Magistrate hearing a claim in relation to weekly payments to ‘enquire into, hear and determine the question of the applicant’s entitlement to the reinstatement of his weekly payments’. (ibid at [24]).

206 The Court stated that ‘the Magistrate [is] required to determine for himself whether or not a relevant precondition was established and then whether or not compensation in the form of weekly payments should be paid to the applicant having regard to the object and purpose of the Act.’ (ibid at [33]).

207 The principle as set out in Jarvis v Salvation Army (ibid) has been applied in Tuimaseve v Wesfarmers Ltd ([2016] VMC 15) (supra), a decision of Magistrate Ginnane and Vassallo v Intermotor Sales ([2017] VMC 16), a decision of Magistrate Wright.

208 Both Magistrates noted that the court had the power to determine afresh a worker’s claim for weekly payments in circumstances where a challenge has been made to a decision under section 114(2A) of the ACA to cancel or alter such payments. In making a fresh determination, the court would have to make its decision pursuant to the terms of s 114(2A) of the ACA, which explicitly provided that the decision was a discretionary one, in that the decision maker ‘may’ determine whether or not to alter or cancel the amount of compensation in the form of weekly payments.

209 This court must ‘remake the decision that had been made’ to reduce the plaintiff’s weekly payments on the basis that he resigned his employment for reasons unrelated to his incapacity.

210 This requires the court to review the facts of this matter and re-determine whether the plaintiff did resign for reasons unrelated to his incapacity, and, if so, whether it should affect the plaintiff’s entitlement to weekly payments.

CONCLUSION

211 What occurred on 23 March 2018 was unfortunate for both the plaintiff and the defendant. The plaintiff resigned from a job he liked and had performed well since 2010.The defendant acknowledged they lost a valued employee when the plaintiff resigned and made attempts to get him to change his mind.

212 I found the plaintiff to be a credible and truthful witness. He was a loyal and trusted employee who sustained a significant injury to his back affecting his capacity to continue working at the level he was working prior to 15 May 2017. Given the nature of the injury sustained by the plaintiff, it was a testament to his commitment to the defendant that he returned to work on modified duties two days later, and thereafter effectively worked full time until resigning just under a year later. Mr Hofen and Mr Bird were both appreciative of the plaintiff’s work efforts before and after his injury.

213 I accept the plaintiff’s evidence that the injury to his back curtailed his ability to perform his pre-injury employment. The medical evidence clearly supports this proposition. However, rather than abide by the medical restrictions, I find the plaintiff continued to regularly perform aspects of his pre-injury employment after he was injured. Despite the best intentions of Mr Hofen and Mr Bird in trying to provide assistance for the plaintiff, the plaintiff continued performing duties that were outside his medical restrictions. I accept Mr Allan’s submission that, as a result, the plaintiff was continuing to work under physical difficulty and in pain, and as a result, was understandably upset about his situation.

214 I accept the plaintiff’s evidence that he did tell Mr Hofen the work was difficult and what work he could do and not do. It was implicit in Mr Hofen’s evidence that he was aware the plaintiff was having difficulty with work given he said he tried to provide assistance to the plaintiff. As Mr Hofen said, ‘the plaintiff was of the view he could still work as he did before he sustained his back injury’.

215 Similarly, Mr Bird had no issues with the plaintiff’s work ethic and described him as ‘a good, honest and hard worker and was maybe, too hard a worker for his own good’.

216 I accept the plaintiff’s evidence that ‘he sometimes felt there was no difference between the work he was doing before May 2017 and the work he was doing after May 2017’.

217 The genesis of the plaintiff’s reason for resigning occurred on 22 March 2018 when he said he was criticised by Darren after going for a toilet break. The plaintiff was not challenged with respect to this account, and I accept the plaintiff’s evidence that this conversation took place. I accept the submission of Mr Allan that, in the plaintiff’s mind, he was not able to work to the level he had worked before injuring his back. The evidence of Mr Hofen and Mr Bird also supported this. As far as the plaintiff was concerned, he was told off by Darren because of his incapacity and not being able to do what he used to do. In this respect, I accept the plaintiff’s evidence.

218 What happened on 23 March 2018 was a complete misunderstanding on the plaintiff’s behalf. I accept Mr Hofen’s evidence that he was attempting to tell the plaintiff that the two Afghanistan workers needed to be told they were not working properly and were starting work late, coming back from lunch late, and finishing work early. Mr Hofen said the plaintiff thought he was being criticised about his own work performance and he tried to explain to the plaintiff that this was not the case. Mr Hofen’s evidence was that the plaintiff thought he was having a ‘go at him’ and there was a breakdown in the communication between him and the plaintiff. The plaintiff said he had been told off the day before after going to a toilet break, and given his English skills, the court accepts the plaintiff did think Mr Hofen was referring to him when he was speaking about the work performance of his co-workers.

219 I accept the plaintiff’s evidence that he thought Mr Hofen was accusing him of not working properly because of coming back late from the toilet break the day before. I accept the plaintiff was understandably upset as a result because, as far as he was concerned, he had been working under difficulty and struggling with the work duties. I accept the plaintiff told Mr Hofen he could not continue working because of his pain and, as a result, resigned his employment.

220 I also find there is contemporaneous support for the plaintiff’s version in the notes of Dr Prakash recorded later that day. The plaintiff attended Dr Prakash at approximately 2.50pm on 23 March 2013 and told Dr Prakash he had resigned from his job that day. Dr Prakash recorded the plaintiff was upset as a result of a discussion with his boss.

221 Whilst the plaintiff told Dr Prakash that his back pain was the same, I do not accept Mr McKenzie’s submission that this was significant and that the evidence overall supported the proposition that the plaintiff was capable of performing modified duties to 23 March 2018, and would have continued to have been capable of performing modified duties after 23 March 2018. The plaintiff’s evidence was that he was struggling with work and could not continue. I do not accept that the provision of similar Workcover certificates of capacity after 23 March 2018 meant the plaintiff would have been able to continue working for the defendant. The medical restrictions had been in place prior to 23 March 2018 and the evidence of the plaintiff was that he was not coping with the work then and was unable to continue.

222 I accept the plaintiff’s evidence that he was physically struggling with the work duties and having difficulty keeping up with his workload leading up to 23 March 2018.

223 Mr McKenzie submitted that it did not matter what the court eventually determined took place on 23 March 2018 as neither version meant the plaintiff had resigned for reasons related to his incapacity. I do not accept that submission. In my opinion, the plaintiff’s version of what took place on 23 March 2018 led him to resign his employment for reasons related to his incapacity.

224 Accordingly, on a consideration of the evidence overall, I find that section 185(1)(e)(i) of the WIRC Act is not applicable and the notice dated 24 May 2019 is set aside.

225 For completeness, I also make these comments.

226 There was much debate about Mr Hofen’s credit card and whether this was the subject of any discussion on 23 March 2018. As far as the plaintiff was concerned, Mr Hofen took the credit card back from him and the plaintiff was of the view this was due to his work performance. Mr Hofen said he was ‘pretty much 100%’ sure the plaintiff did not ask for his credit card on the day. There were obviously language difficulties on 23 March 2018. However, Mr Hofen agreed the plaintiff would normally attend his office on a Friday at about lunchtime and ask for his credit card. This was the plaintiff’s usual practice. Mr Allan submitted the issue of the credit card was a side issue and honest recollections of the parties can vary over time. I agree with this submission. The primary reason why the plaintiff resigned on 23 March 2018 was because of issues concerning his back injury and resultant incapacity.

227 Despite the plaintiff’s agreement with Mr McKenzie that his psychiatric state did not manifest itself until he complained to Dr Chamacham on 24 August 2018, I am of the opinion the plaintiff was upset about his injury leading up to his resignation. I accept the plaintiff’s evidence that, sometimes, his co-workers did laugh or smile at him as a result of his physical restrictions and that this was one of the factors that affected him overall. It was sequelae of his physical condition. It certainly did not amount to a primary psychiatric injury and, in that respect, I agree with Mr McKenzie.

228 The issue of whether the plaintiff sent Mr Bird a text message after he resigned is a peripheral matter and not relevant to the issue in dispute. However, I accept the evidence of the plaintiff that he did send Mr Bird a text message. Mr Jafari corroborated his evidence. Mr Bird simply said he now had a new phone, and it was difficult to remember whether he had received a text from the plaintiff after he resigned.

229 Alternatively, if I had been of the opinion that section 185(1)(e)(i) of the WIRC Act had been applicable, in line with the decision of Jarvis, the court has a general discretion to reinstate the plaintiff’s entitlement to weekly payments of compensation.

230 After considering the purpose and objects as set out in section 1 and section 10 of the WIRC Act, the court would have exercised its discretion and reinstated the plaintiff’s entitlement to weekly payments of compensation. Of relevance are sections 10(b), (c) and (d) of the WIRC Act. These include the objective to make provision for the effective rehabilitation of workers, to facilitate their return to work and to ensure that they receive appropriate compensation, as expeditiously as possible. The reinstatement of the plaintiff’s entitlement to weekly payments of compensation would meet these legislative objectives and is in accordance with the beneficial nature of the legislation.

231 Furthermore, the evidence of Mr Hofen and Mr Bird was that prior to his resignation on 23 March 2018, the plaintiff had been a loyal, diligent, and hard-working employee. In fact, the plaintiff had been given a pay rise and made a Leading Hand as of 5 April 2017. There had been no concerns noted about the plaintiff’s performance prior to 23 March 2018. These are relevant considerations to consider in determining whether the plaintiff is entitled to the reinstatement of his weekly payments.

232 I also take into account the nature of the plaintiff’s back injury and the impact it is still having on him. The plaintiff should be entitled to adequate and just compensation as a result.

233 The plaintiff is entitled to the reinstatement of weekly payments of compensation from 25 May 2019 in accordance with the WIRC Act.

234 I ask the parties to provide the appropriate orders.

[2021] VMC 16

12 November 2021